When ‘The Nine’ become ‘The Eight’ (or ‘The Seven’ or ‘The Six’…): When Supreme Court Justices recuse themselves, and why it matters

Opinion by Alex Twinem
Nov. 12, 2015, 11:59 p.m.

The practice of Supreme Court recusal has been receiving national attention following oral arguments in Federal Energy Regulatory Commission v. Electric Power Supply Association. The case, which concerns the federal government’s authority to regulate the price of energy, was already noteworthy in its own right. Because the Court’s decision seriously implicates billions of dollars in revenue for energy companies, it has been described as “a case whose importance is hard to over-estimate.”

But much of the discussion surrounding the case has centered not just on what the court will decide, but who will decide it. Justice Alito recused himself, meaning he voluntarily removed himself from considering the case due to a conflict of interest. While Justices need not disclose why they recuse themselves from cases, it seems likely that his recusal was because he owns stock in Johnson Controls, a major energy conglomerate that owns and controls one of the companies involved in this lawsuit. And the day after oral arguments, Justice Breyer became aware that his wife also owned stock in Johnson Controls. Rather than recuse himself, his wife sold the stock that day for $33,000. This incident has once again focused attention on the Court’s somewhat opaque recusal practices and provides an opportunity to discuss why the Court should adopt voluntary measures clarifying its standards for recusal.

Both Justices were obligated to take action either to recuse themselves or eliminate the financial conflict of interests under federal law. 28 U.S.C. § 455 requires that a Justice (or other federal judge) recuse himself or herself where the Justice or a close family member has a financial interest in the outcome of a case, where the Justice worked on a case as a lawyer, or where the Justice “has a personal bias or prejudice concerning a party.” These requirements are aimed at keeping all federal judges and Justices impartial when deciding a case. As the Court explained as early as 1955, “no man can be a judge in his own case,” and “no man is permitted to try cases where he has an interest in the outcome.”  

For the Supreme Court, these recusal requirements can have a pronounced effect. Because there are only nine Justices – all of whom normally hear and rule on every case – one missing Justice can create the unfortunate incident of a 4-4 tie. In such a case, the Court simply affirms the lower court decision “by an equally divided Court.” These decisions do nothing to clarify the law: The decisions explicitly do not set precedent, meaning any other court can decide a similar case in whatever way it wants going forward. And the Supreme Court’s affirmance does not include any suggestion to the litigants (or similarly situated parties) what the Supreme Court would decide in a future case heard by all nine Justices. For this reason, after a 4-4 decision, other parties will ask the Court to hear similar cases to finally make the law clear. These 4-4 decisions are a waste of valuable Court resources — the Court receives 10,000 petitions but only hears about 75-80 cases a year. The 4-4 affirmance takes a place on the Court’s docket better given to a case that would clearly decide the law.  

Because of the undesirable effects recusal can cause, vocal advocates have pressed the Justices to give up ownership of stock entirely or put it in blind trusts so that they will be able to hear more cases conflict-free. Congress has tried to make selling stock more appealing to Justices by giving them tax breaks on the sale of conflict-of-interest stock to avoid such 4-4 decisions. Some have suggested that, in the event of a recusal, a retired Supreme Court Justice fill the vacancy to prevent a dreaded 4-4 decision (currently, that would mean Justices O’Connor, Souter or Stevens).

Other advocates agree with the need to fix the recusal process, but suggest that Justices should actually be recusing themselves in more cases. In 2012, there were calls for Justice Kagan to recuse herself from taking part in the first Obamacare case because before sitting on the Court, she served as Solicitor General in the Obama administration, which would be charged with defending the bill. She ultimately did not recuse herself because she had meticulously avoided being part of any discussions on the legal defense of the law. Other advocates called for Justice Thomas to recuse himself from the same case because his wife had lobbied against the Affordable Care Act for a conservative organization named Liberty Central. He similarly did not recuse himself. And Justice Scalia was called to recuse himself in 2004 from a case involving Vice President Dick Cheney after the two were part of a duck hunting trip months before the case was decided. Scalia wrote a fiery 21-page memo on why one trip attended by over a dozen people would not swing his vote in the case.

Congress, too, has tried to get in on the act. In 2011, members of the House of Representatives put forth the Supreme Court Transparency and Disclosure Act – a bill that would have required Justices to explain why they were or were not recusing themselves in close cases. The bill died in the House. That same year, 138 law professors signed a letter and sent it to the judiciary committees of both Houses of Congress, asking the Supreme Court to adopt some sort of review process if a Justice refuses to recuse himself or herself. The Court has refused such matters, with Chief Justice Roberts stating in his end of the year report for 2011 that he had “complete confidence in the capability of [his] colleagues to determine when recusal is warranted.”

Whatever the merits of the Chief Justice’s faith in his colleagues, it’s safe to say that calls for Justices to recuse themselves, especially in high-profile cases, are here to stay. While lawyers may file a formal motion to disqualify a Justice, much more likely are articles and opinion pieces in newspapers, law journals, or websites written by lawyers, academics, and politicians. This type of media strategy occurs outside the Court and does not require the Justices to act at all, but it is an appealing maneuver for parties who expect to lose at the Supreme Court. Under some circumstances, they may actually convince a Justice who could cast the critical vote against their position to recuse himself or herself. This makes a victory in the Court (or at least a 4-4 non-decision) more likely. Even in the much more likely scenario that the Justice does not recuse, the advocates have at least made the decision seem more political and less credible. And, as we’ve explained previously, the Court requires a perception of legitimacy to ensure that its decisions are respected and enforced.  

To that end, the Supreme Court would benefit from taking voluntary measures to clarify its recusal standards. Primarily, it should openly adopt a set of guidelines that describe when Justices ought to recuse themselves. For inspiration, the Justices might look to the American Bar Association’s Model Code of Judicial Conduct, which sets out specific criteria. To be sure, the Justices carefully consider the question of whether recusal is necessary in a particular case. In fact they probably already consider the ABA standards when making the decision. But voluntarily adopting a set of guidelines would clarify that decision-making process for the public and signal that recusals depend on neutral principles, not a desired outcome in a case.  

Similarly, the Court would benefit if Justices voluntarily disclosed their reasons for recusal in close cases. As Justice Scalia found during the duck-hunting controversy, an explanation goes a long way: When he released his memo, the Sierra Club (the party opposing Vice President Cheney) quickly issued a public statement that it would not pursue further legal action and expressed a wish that Scalia had earlier explained how little contact he’d had with Cheney on the trip. Laying out this kind of reasoning would further quell any concerns that the Justices are acting politically rather than impartially.

But more fundamentally, adopting a set of guidelines and explaining recusal decisions would help foster a public sentiment that the Court is transparent. Unlike the other branches of government, the Supreme Court is not democratically elected. Oral arguments are not broadcast on C-SPAN, and Justices don’t have to justify their policies every few years to run for reelection. And that’s all great – the Court serves an important function as the countermajoritarian branch of government, and being truly impartial requires Justices not be beholden to the whims of the electorate.  

But because the Court is so critical to creating and upholding the laws of the United States, it is inevitable that the public wants to know more about its inner workings. Explaining recusal decisions would let us peek behind the curtain without compromising any of the Court’s important duties. And as the Court continues to hear high-profile cases (with petitions currently before it on hot-button issues including gun ownership and abortion), a step toward greater transparency would reify traditional notions of the Court as above the political fray and beyond reproach. 


Brittany Jones is the president of the Stanford Law Review. Alex Twinem is one of the Stanford Law Review’s managing editors. Michael Qian is one of the Stanford Law Review’s executive editors. Danny Kane is one of the Stanford Law Review’s senior editors. Contact them at bjones2 ‘at’ stanford.edu, atwinem ‘at’ stanford.edu, mfqian ‘at’ stanford.edu and dkane ‘at’ stanford.edu.

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